Years of Provocation, Followed by a Loss of Control

Barry Mitchell

in Principles and Values in Criminal Law and Criminal Justice

Published in print August 2012 | ISBN: 9780199696796
Published online September 2012 | e-ISBN: 9780191742293 | DOI:
Years of Provocation, Followed by a Loss of Control

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On 4 October 2010 the old common law plea of provocation which, if successful, reduced murder to voluntary manslaughter, was abolished and replaced by the partial defence of loss of control. This was the culmination of a crescendo of criticism and frustration over three or four decades of case law, especially about, firstly, the requirement of a loss of self-control, and the apparent bias in favour of male reactions to provocation, and the law's inadequate accommodation of female reactions; and, secondly, the nature of the normative element in the law and the extent to which personal characteristics of the defendant could be taken into account. This chapter reviews some of the key elements and concerns about the old common law before turning to explore its statutory replacement. In so doing, it argues that the decision to base the new law on a loss of control requirement is fundamentally misguided. Whilst the use of ambiguous words and phrases may allow the courts a necessary measure of discretion, it will simultaneously risk injustice to some deserving defendants. The chapter also suggests that the objective requirement in the new plea has not been adequately thought through.

Keywords: old common law; loss of control; objective requirement; provocation; murder; manslaughter; criminal law

Chapter.  10711 words. 

Subjects: Criminal Law

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